But at the same time, the key role lawyers played in buttressing the former president’s plans speaks to a troubling crisis in the legal profession. The lawyers he conspired with — whose alleged conduct breached a host of rules of professional ethics, in addition to provisions of criminal law — did not emerge from whole cloth. They are the product of a profession that has changed over the past 40 years, in ways that tend to reduce the supply of Rosen-type lawyers in public roles, and increase the supply of Clarks. And unless we make changes in the structure of public lawyering and the professional path lawyers take to get there, we will not only lose one of our most effective checks against authoritarian power, we could accelerate its consolidation.
Scandals among presidential lawyers are, of course, hardly new. By the end of the Watergate revelations, no fewer than 29 lawyers — including two of President Richard Nixon’s handpicked attorneys general — faced sanctions for failing to check presidential misconduct, and lying to facilitate its commission. Both government and professional associations responded by adopting a revolutionary set of reforms, aimed at reinforcing the rule of law as a guardrail of constitutional democracy. The American Bar Association revised its influential model rules of professional ethics to make clear that lawyers who work for any organization, including the government, have a duty to report any unlawful acts of federal officials they encounter in the course of their work.
Similarly, the A.B.A. for the first time demanded that students at any American law school wishing to retain its A.B.A. accreditation complete a course in professional responsibility before graduation. Every future American lawyer, the idea was, would grow up in a profession in which ethical duties, including heightened requirements of truthfulness and candor, would be hard-wired.
Congress, too, considered proposals to radically reform government lawyering — from requiring the attorney general to belong to a different political party than the president, to making him or her fully independent of the executive branch (and free from the president’s supervision or interference). To stave off these more dramatic measures, President Gerald Ford’s attorney general ordered the creation of a new Office of Professional Responsibility, charged with reviewing allegations that any department employee was violating legal or ethical rules — an office that exists to this day. Members of both parties said they supported the goal: to make sure government lawyers consistently uphold the highest standards of professionalism in the public service.
The parallels in lawyerly misconduct between Watergate and today are evident: Mr. Eastman is facing “moral turpitude” charges in California, Rudy Giuliani faces disbarment in Washington, D.C., and they’re far from the only ones. Dozens of other lawyers who represented Mr. Trump in election litigation now face misconduct allegations in state disciplinary proceedings nationwide.